Smith v. Smith

330 S.E.2d 706, 254 Ga. 450, 1985 Ga. LEXIS 745
CourtSupreme Court of Georgia
DecidedJune 18, 1985
Docket41985
StatusPublished
Cited by70 cases

This text of 330 S.E.2d 706 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Smith, 330 S.E.2d 706, 254 Ga. 450, 1985 Ga. LEXIS 745 (Ga. 1985).

Opinions

Smith, Justice.

Appellant Peter S. Smith, a nonresident, was personally served in Colorado pursuant to the domestic relations section of the Georgia Long-Arm Statute, OCGA § 9-10-91 (5), after appellee Mrs. Rosella R. Smith, a Georgia resident, filed a petition for contempt and modification of their 1982 Georgia divorce decree. Appellant filed a plea to the jurisdiction and motion to quash service which was denied by the trial court. The trial court granted a certificate of immediate review, and we granted appellant’s application for discretionary appeal. We affirm.

The Smiths moved to Georgia in 1980, and in 1982 they were granted a divorce in the DeKalb County Superior Court. Appellee was awarded permanent alimony and twenty-five percent (25 %) of all bonuses received by appellant (his bonuses had been substantial). Appellant was also required to pay certain medical expenses incurred by appellee. Appellant was transferred to Colorado in 1983. After moving, he failed to pay appellee under the bonus provision of the agreement, contending that he was no longer under a bonus system. He also refused to provide appellee with substantiation regarding the bonuses as required by the decree.

Appellant and his employer were served with notices to produce relating to the manner in which appellant was compensated. He answered stating, among other things, that he was not subject to the jurisdiction of the State of Georgia and that the Long-Arm Statute was inapplicable to modification or contempt actions against nonresident defendants. The employer’s answer showed that appellant had received “$8,000 in additional compensation for 1983.”

Attorney for appellee stated during oral argument that appellant moved after this litigation began, and that he is presently residing in New Jersey.

1. Appellant contends, as his second enumeration of error, that the trial court erred in holding that OCGA § 9-10-91 (5) is applicable to post judgment modification of alimony.

“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. . . .” OCGA § 1-3-1 (a). The old law made it virtually impossible to bring actions in domestic cases once the defendant became a nonresident unless the defendant could be lured back into the state to be personally served. The evil was that many needy spouses and children were without an effective and complete remedy to enforce or modify court-ordered judgments against nonresidents. In 1976 we approved the use of Florida’s Long-Arm Statute to obtain personal jurisdiction over a Georgia defendant [451]*451who had previously maintained a marital domicile in Florida. Whitaker v. Whitaker, 237 Ga. 895 (230 SE2d 486) (1976). Later in Warren v. Warren, 249 Ga. 130, 131 (287 SE2d 524) (1982), we noted with disapproval the fact that other states had enacted domestic relations Long-Arm Statutes, but our legislature had failed to do so. Within a year, the General Assembly enacted subsection (5) of OCGA § 9-10-91, the domestic relations subsection of our Long-Arm Statute.1 Subsection (5) was patterned after the Florida statute that we had studied and approved in Whitaker, supra, six years earlier. Thus, subsection (5) became the remedy.

Appellant argued that an action for modification of alimony was not contemplated by the legislature. He reasoned that it is not “in connection with an action for divorce,” nor is it “an independent action for the support of dependents,” because a former spouse is not a dependent.2 Appellant would have us limit “dependents” to children.

Funk and Wagnalls Standard Dictionary includes in its definitions of “dependent,” “Relying on someone or something for support.” Under the laws of Georgia, “Alimony is an allowance out of one party’s estate, made for the support of the other party when living separately. It is either temporary or permanent.” (Emphasis supplied.) OCGA § 19-6-1 (a). “The purpose of alimony is to provide support for the [needy spouse] and minor children, . . . [Cit.]” (Emphasis supplied.) McCurry v. McCurry, 223 Ga. 334, 335 (155 SE2d 378) (1967).3 It is obvious that one who is receiving or is supposed to receive alimony is a dependent under OCGA § 9-10-91 (5).

We would be ignoring the legislature’s rational intent if we allow children to use the domestic relations subsection of the Long-Arm Statute, Lee v. Pace, 252 Ga. 546, 547 (315 SE2d 417) (1984), and deny the same privilege to spouses, when the legislature provided both children and spouses the right to seek modification under the same code sections, OCGA §§ 19-6-18 and 19-6-19.

[452]*452We find that the legislature intended by enacting subsection (5) to allow children and spouses to seek modification against nonresident defendants “in the same manner as if [the nonresident] were a resident of the state, . . .” OCGA § 9-10-91.

2. Appellant asserts, as his third enumeration of error, that OCGA § 9-10-91 (5) is not applicable to contempt actions.

Again we must look to the words of the statute and the legislative intent. We must decide whether a contempt action is “an independent action for the support of dependents” or whether it is “a cause of action arising from . . . proceedings ... in connection with an action for divorce ...” The statute, provides in part, “A court of this state may exercise personal jurisdiction over' any nonresident or his executor or administrator, as to a cause of action arising from . . . proceedings for alimony, child support, or division of property in connection with an action for divorce ...” Under the laws of Georgia, “[A]n application for contempt to enforce an alimony and child support judgment is ancillary to the primary action and an incident of the divorce and alimony action. [Cits.]” Hines v. Hines, 237 Ga. 755, 756 (229 SE2d 744) (1976). The contempt action being an “incident of the divorce and alimony action,” necessarily is a “cause of action arising from . . . proceedings ... in connection with an action for divorce . . .”

The state has a substantial interest in enforcement of all of the orders of its courts, Farmer v. Holton, 146 Ga. App. 102, 106 (245 SE2d 457) (1978), cert. den. 440 U. S. 958 (99 SC 1499, 59 LE2d 771) (1978), and an especially strong interest in enforcement of alimony judgments.4

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Bluebook (online)
330 S.E.2d 706, 254 Ga. 450, 1985 Ga. LEXIS 745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-ga-1985.